Sant Gadgebaba Amravati ... vs Pravin Rangrao Ghardinkar
2016 Latest Caselaw 3750 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                              
                            NAGPUR BENCH, NAGPUR.




                                                                      
                              WRIT PETITION NO.429 OF 2009


    Sant Gadgebaba Amravati University 
    Amravati, Thr. The Registrar                                         ... Petitioner 




                                                                     
    -vs-

    Pravin Rangrao Ghardinkar 




                                                       
    Aged : Major R/o Gurukrupa Colony 
    Near Dental College, Camp Amravati.  
                                       ig                                ... Respondent 

    Shri M. M. Sudame, Advocate for petitioner.  
    Shri N. R. Saboo, Advocate for respondent. 
                                     
                                                           CORAM  : A.S.CHANDURKAR, J. 

DATE : July 12, 2016

Oral Judgment :

The petitioner is aggrieved by the order passed by the Labour

Court, Amravati in reference proceedings whereby it has been held that the

respondent is entitled to reinstatement on his former post with continuity of

service and 30% back-wages from 01/01/2000.

It is the case of the respondent that he was working with the

petitioner University in Examination Section as Peon since November 1990.

It is his further case that he worked continuously on daily wages till

31/07/1992 after which his services were came to be orally terminated.

According to the respondent various juniors to him were retained in service

and hence there was breach of provisions of Section 25G and 25H of the

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Industrial Disputes Act, 1948 (for short, the Act of 1948). He filed reference

on 16/04/1999 after which the dispute was referred to the Labour Court for

adjudication. The petitioner in its written statement denied that the

respondent worked for more than 240 days in a calender year. It was stated

that the respondent had left the work in May 1991. The case that juniors

were retained in service and that there was violation of provisions of Section

25G and 25H of the Act of 1948 came to be denied. It was stated that the

petitioner was willing to produce relevant documents on record and that

there was delay in filing the reference. The respondent examined himself

before the Labour Court. On behalf of the petitioner, its Assistant Registrar

was examined. Thereafter the Labour Court passed an award on 22/07/2008

and recorded a finding that the order of termination dated 31/07/1992 was

illegal as there was breach of the provisions of Section 25G and 25H of the

said Act. A case for reinstatement was made out. After considering the

aspect of delay in seeking the reference, back-wages to the extent of 30%

were granted from 01/01/2000. Being aggrieved, the petitioner has

challenged the said award.

2. Shri M. M. Sudame, the learned counsel for the petitioner

submitted that the Labour Court was not justified in allowing the reference.

According to him, the respondent was in employment after his reinstatement

till 31/07/1992. Approach notice was given on 16/04/1999 and there was

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inordinate delay in doing so. The claim as made was stale and there was no

industrial dispute in existence when the approach notice was given. He

therefore submitted that no relief could have been granted to the respondent.

It was then submitted that the finding recorded by the Labour Court that the

respondent had completed 240 days service was without any basis. Even if it

was assumed that he had completed service for 240 days, there could not

have been any direction for reinstatement along with continuity of service. It

was then urged that grant of 30% back-wages was unwarranted in absence of

any evidence that the respondent was not in gainful employment after 1992.

In support of his submissions, the learned counsel placed reliance upon the

judgment of the Honourable Supreme Court in AIR 2006 SC 2670 Assistant

Engineer, C.A.D. Kota v. Dhan Kunwar and 2006(4) SCC 1 Secretary,

State of Karnataka and ors. v. Umadevi (3) and ors. It was therefore

submitted that the order passed by the Labour Court was liable to be set

aside.

3. Shri N. R. Saboo, the learned counsel for the respondent

supported the impugned order. According to him, there was no specific

pleading that the claim was belated or stale. There was no cross

examination on the relevant aspects on which the respondent had deposed.

The direction to produce muster rolls was issued by the Labour Court but the

same was not complied by the petitioner. According to him, an adverse

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inference against the petitioner was liable to be drawn in these

circumstances. He then submitted that the aspect of delay was taken into

consideration and back-wages only to the extent of 30% from 01/10/2000

had been granted. He relied upon the judgment of the Honourable Supreme

Court in 2010 II CLR 1 Anoop Sharma v. Executive Engineer, Public

Health Division No.1, Panipat (Haryana), 2010 (1) Bombay LC 392 (SC)

Director, Fisheries Terminal Division v. Bhikubhai Meghajibhai Chavda,

AIR 2015 Supreme Court 357 Tapash Kumar Paul v. BSNL and anr. and

(2015) 4 SCC 458 Jasmer Singh v. State of Haryana and anr.

4. I have given due consideration to the respective submissions.

According to the respondent after terminating his services on 31/07/1992,

the petitioner retained various junior employees in service resulting in

violation of mandatory provisions of Act of 1948. In the claim statement it

was further stated that the respondent had approached the petitioner from

time to time with a request to take him back in service. In the written

statement a plea that the respondent had left his work in the month of May

1991 was taken. It was also stated that the petitioner would produce

necessary documents in that regard during the course of evidence. The

Labour Court passed an order below Exhibit-13 calling upon the petitioner to

produce relevant records for the period from November 1990 to July 1992.

These documents however were not produced on record. It is on this aspect

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that an adverse inference came to be drawn against the petitioner in view of

the fact that in the written statement a specific stand that the documents

were available and will be produced had been taken.

5. The aspect of delay that was sought to be raised by the petitioner

was taken into consideration by the Labour Court. As observed in Jasmer

Singh (supra), relief in reference proceedings cannot be denied to the

workman only on the ground of delay. If the plea of delay is raised by the

employer then the same is required to be proved as a matter of fact by

showing real prejudice and not a hypothetical defence. It has been further

held that in such situation, the relief if granted can be suitably modified. If

the material on record in the light of aforesaid law is considered, it can be

seen that except raising a plea in the written statement, there is no specific

stand taken in that regard as to the prejudice caused on account of said

delay. The Labour Court therefore rightly held that the aspect of delay could

not be a ground to refuse the claim and instead would be a case for granting

lessor relief.

6. Once it is found that despite a direction to produce relevant

records the same were not so produced, it cannot be said that the Labour

Court was not justified in drawing adverse inference against the petitioner.

Despite a specific stand that the records were available, the same were not

204-J-WP-429-09 6/8

produced. The finding therefore that the order of termination was contrary

to the provisions of Section 25 G and 25H of the said Act on the basis that

service for 240 days had been completed, cannot be faulted.

7. The submission that there was no question of granting any

continuity of service in favour of the respondent deserves to be accepted. The

direction with regard to continuity of service cannot result in regularising the

services of the respondent. The observations of the Honourable Supreme

Court in Secretary, State of Karnataka and ors. (supra) support said

contention. This direction of continuity in service would only mean that the

respondent after his reinstatement on the former post in the capacity as daily

wager would be continued as such. Similarly, the direction to reinstate the

respondent on his former post would only mean as a daily wager. It would

only mean that the respondent had been continued as a daily wager from the

date of his termination. The said direction cannot have the effect of

changing the status of the respondent from a daily wager simply because of

the direction of reinstatement and continuity of service.

8. The aspect of delay has been rightly taken into consideration

while restricting back-wages to 30% from 01/01/2000 being the date of

reference. The ratio of the decision in Assistant Engineer (supra) cannot

apply to the facts of the present case. The equities in that regard have been

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properly balanced after considering the aspect of delay. Subject to aforesaid

observations in respect to the manner of reinstatement and continuity of

service, I do not find that the impugned award requires any interference.

The award passed by the Labour Court stands confirmed. The writ petition is

therefore dismissed with no order as to costs.

                                                                    
                                                                                      JUDGE
                                             
                                            
               
            






    Asmita





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